In bid for patent sanity, judge throws out entire Apple/Motorola case

Apple's and Motorola's bid for injunctions put to rest, at least in one venue.

One of the most outspoken judges in the craziness that is the US patent system made a bold move tonight, throwing out a lawsuit in which Apple and Motorola were seeking injunctions against each other's mobile products.

Judge Richard Posner previously canceled a jury trial in Chicago in the case, and then castigated both Apple and Motorola while calling the entire US patent system "chaos." Posner, a US Court of Appeals judge who is sitting by designation for this case in US District Court in Illinois, issued a ruling late today (Scribd link) that shows he wasn't just joking.

Noting that dismissals without prejudice allow suits to be refiled, Posner made it clear that this one would be dismissed with prejudice. "It would be ridiculous to dismiss a suit for failure to prove damages and allow the plaintiff [Apple] to refile the suit so that he could have a second chance to prove damages. This case is therefore dismissed with prejudice," Posner wrote. Posner had previously ruled that proposed testimony from experts put forth by both sides would be inadmissible, making it difficult to support any claims for damages or injunctions.

The case would have involved two trials, one covering Apple's claim that Motorola infringed four of its patents and another covering Motorola's claim that Apple infringed one of its patents. A series of pretrial rulings eliminated nearly all of Motorola's patent claims while preserving some of Apple's, Reuters noted earlier this week.

Posner complained that Apple's attempt to get an injunction restricting the sale of Motorola phones would have "catastrophic effects" on the mobile device market and consumers. He further criticized Motorola for trying to use a standards-essential patent to get an injunction against Apple.

The Apple/Motorola saga isn't quite over. Both sides are fighting over patents in front of the US International Trade Commission and in German courts, too. It goes back to October 2010 when Motorola first sued Apple in front of the ITC, a move followed by Apple launching the suit dismissed today by Posner. Motorola is also being investigated by the European Union for using standards-essential patents to seek injunctions against products such as the iPhone, iPad, Windows, and the Xbox 360. Both Apple and Microsoft accuse Motorola of seeking license fees that are too high for patents pledged to industry standards groups, while neither Apple or Microsoft sued Motorola using standards-essential patents.

Apple declined comment when reached by Ars. Motorola released a statement to Ars stating: "We are pleased that Judge Posner formally dismissed the case against Motorola Mobility. Apple’s litigation campaign began with their attempt to assert 15 patents against us. As it relates to Apple’s violation of our patents, we will continue our efforts to defend our own innovation."

Posner's written decision does mention the possibility of the case being appealed—so even this particular case may go forward again.

Promoted Comments

The law says that you have to license a patent or stop infringing. He's already gone through and thrown out all the invalid patent claims from both parties, and now if if they parties can't agree on a license then they need to stop infringing... right?!?

If Posner thinks Motorola and Apple should be allowed to infringe each other's patents, he should explain why and change the law (or set a precedent). Not dismiss the case.

1) Motorola agreed to license its FRAND patents when they became standards-essential, so they can't get an injunction against Apple just because Apple refuses Motorola's initial offer. If the companies can't agree on a figure, a judge could impose a reasonable royalty rate.

2) Apple's claims of infringements are trivially small parts of Motorola's phones, that would nevertheless be expensive to redesign at this point in time, so Apple isn't entitled to an injunction (per the Supreme Court's decision on eBay vs MercExchange). Apple would be entitled to damages, if it could prove damages, and it can't. It claims that it has lost consumer goodwill and market share to Motorola due to these patents (which include things like "blocking the notification bar partially, but not completely" and "turning pages in e-books by pressing a button instead of swiping across the page"), but Apple has presented no evidence to back up these claims.

3) In other words, both Motorola and Apple could be entitled to damages, if they actually proved damages, which they didn't. Neither is entitled to an injunction.

Uh, I'm an ex-Microsoftie who's never owned an Apple product in my life. I'm just not a fan of judges arbitrarily walking away from their responsibilities.

Strongly suggest you look at the track record of this judge before you consider him a champion. He's a champion of monopolies(strongly feels anti-trust laws harm consumers), claims that there is no right to privacy, and has advocated for laws preventing web sites from linking to newspaper contents as he believes its a 'free ride'. Even opposes the idea of websites paraphrasing news that they did not themselves first report or pay for.

Seriously, I know you may like this decision, but if you assume he is working off logic here, then you have to assume he's working off logic in his other statements, right?

Uh, I'm an ex-Microsoftie who's never owned an Apple product in my life. I'm just not a fan of judges arbitrarily walking away from their responsibilities.

Strongly suggest you look at the track record of this judge before you consider him a champion. He's a champion of monopolies(strongly feels anti-trust laws harm consumers), claims that there is no right to privacy, and has advocated for laws preventing web sites from linking to newspaper contents as he believes its a 'free ride'. Even opposes the idea of websites paraphrasing news that they did not themselves first report or pay for.

Seriously, I know you may like this decision, but if you assume he is working off logic here, then you have to assume he's working off logic in his other statements, right?

He is pretty much universally considered to be the greatest/most influential judge currently living. Are you a lawyer? Cause if you're not... just walk away now.

Uh, I'm an ex-Microsoftie who's never owned an Apple product in my life. I'm just not a fan of judges arbitrarily walking away from their responsibilities.

Strongly suggest you look at the track record of this judge before you consider him a champion. He's a champion of monopolies(strongly feels anti-trust laws harm consumers), claims that there is no right to privacy, and has advocated for laws preventing web sites from linking to newspaper contents as he believes its a 'free ride'. Even opposes the idea of websites paraphrasing news that they did not themselves first report or pay for.

Seriously, I know you may like this decision, but if you assume he is working off logic here, then you have to assume he's working off logic in his other statements, right?

He didn't walk away. He gave both sides multiple opportunities to prove damages. Neither did, so he threw out the case.

Uh, I'm an ex-Microsoftie who's never owned an Apple product in my life. I'm just not a fan of judges arbitrarily walking away from their responsibilities.

Strongly suggest you look at the track record of this judge before you consider him a champion. He's a champion of monopolies(strongly feels anti-trust laws harm consumers), claims that there is no right to privacy, and has advocated for laws preventing web sites from linking to newspaper contents as he believes its a 'free ride'. Even opposes the idea of websites paraphrasing news that they did not themselves first report or pay for.

Seriously, I know you may like this decision, but if you assume he is working off logic here, then you have to assume he's working off logic in his other statements, right?

He is pretty much universally considered to be the greatest/most influential judge currently living. Are you a lawyer? Cause if you're not... just walk away now.

I am aware of his reputation. But despite that reputation several of his positions and decisions are NOT in favor of what the crowd that will champion this would be happy with. Do YOU agree that websites should not be permitted to link to or paraphrase newspaper content? Do YOU agree that you have no right to privacy? Do you feel anti-trust laws impede lower consumer pricing?

Uh, I'm an ex-Microsoftie who's never owned an Apple product in my life. I'm just not a fan of judges arbitrarily walking away from their responsibilities.

Strongly suggest you look at the track record of this judge before you consider him a champion. He's a champion of monopolies(strongly feels anti-trust laws harm consumers), claims that there is no right to privacy, and has advocated for laws preventing web sites from linking to newspaper contents as he believes its a 'free ride'. Even opposes the idea of websites paraphrasing news that they did not themselves first report or pay for.

Seriously, I know you may like this decision, but if you assume he is working off logic here, then you have to assume he's working off logic in his other statements, right?

He didn't walk away. He gave both sides multiple opportunities to prove damages. Neither did, so he threw out the case.

Want to put money on whether or not this holds up on appeal? (assuming it can be appealed)

He didn't walk away. He gave both sides multiple opportunities to prove damages. Neither did, so he threw out the case.

Did he? What is this quote from the article then:

Quote:

Posner had previously ruled that proposed testimony from experts put forth by both sides would be inadmissible, making it difficult to support any claims for damages or injunctions.

I hate patents more than most people, but dismissing a case with prejudice seems wrong to me.

The law says that you have to license a patent or stop infringing. He's already gone through and thrown out all the invalid patent claims from both parties, and now if if they parties can't agree on a license then they need to stop infringing... right?!?

If Posner thinks Motorola and Apple should be allowed to infringe each other's patents, he should explain why and change the law (or set a precedent). Not dismiss the case.

Does he seriously think they should just continue to argue for the next couple hundred years without ever reaching an agreeable price? Without the law stepping in at all?

He didn't walk away. He gave both sides multiple opportunities to prove damages. Neither did, so he threw out the case.

Did he? What is this quote from the article then:

Quote:

Posner had previously ruled that proposed testimony from experts put forth by both sides would be inadmissible, making it difficult to support any claims for damages or injunctions.

I hate patents more than most people, but dismissing a case with prejudice seems wrong to me.

The law says that you have to license a patent or stop infringing. He's already gone through and thrown out all the invalid patent claims from both parties, and now if if they parties can't agree on a license then they need to stop infringing... right?!?

If Posner thinks Motorola and Apple should be allowed to infringe each other's patents, he should explain why and change the law (or set a precedent). Not dismiss the case.

Does he seriously think they should just continue to argue for the next couple hundred years without ever reaching an agreeable price? Without the law stepping in at all?

Not only that, but when you file a lawsuit you are ASKING the court to decide! And his 'decision' was 'not my problem'. Bull shit.

The action of dismissing with prejudice is very much the kind of thing some people describe as being "activist." While normally the term "activist judge" is used by conservative minded people to criticize non-conservative judges. But here we very much have a conservative activist judge

Posner was mentioned in 2005 as a potential nominee to replace Sandra Day O'Connor because of his prominence as a scholar and an appellate judge. Robert S. Boynton has written in The Washington Post that he believes Posner will never sit on the Supreme Court because despite his "obvious brilliance," he would be criticized for his occasionally "outrageous conclusions," such as his contention "that the rule of law is an accidental and dispensable element of legal ideology" his argument that buying and selling children on the free market would lead to better outcomes than the present situation, government-regulated adoption, and his support for the legalization of marijuana and LSD.

"Other companies pay us 0.0xx% royalty for any product infringing on our this patent. These guys sell millions of devices every year and are not paying royalties."

Damages == 0.0xx% multiplied by devices sold. Simple.

I find it hard to believe the legal teams from the a couple of the largest corporations in the world are unable to explain a concept that simple. Far more likely the judge is just being an asshole about it.

Posner was mentioned in 2005 as a potential nominee to replace Sandra Day O'Connor because of his prominence as a scholar and an appellate judge. Robert S. Boynton has written in The Washington Post that he believes Posner will never sit on the Supreme Court because despite his "obvious brilliance," he would be criticized for his occasionally "outrageous conclusions," such as his contention "that the rule of law is an accidental and dispensable element of legal ideology" his argument that buying and selling children on the free market would lead to better outcomes than the present situation, government-regulated adoption, and his support for the legalization of marijuana and LSD.

Seems senile to me.

Ahhh, so having an odd technical interpretation of the concept of 'rule of law', very much disliking the flaws in our current system of government regulated adoption, and wanting to legalize drugs so we can regulate them properly is apparently indicative of senility. Got it.

What is his position? That nobody should have to pay patent licenses? I agree with that 100%.

But the law doesn't agree with it, and the duty of a judge is to enforce the law. NEVER to enforce his own opinion.

keyspan wrote:

The action of dismissing with prejudice is very much the kind of thing some people describe as being "activist." While normally the term "activist judge" is used by conservative minded people to criticize non-conservative judges. But here we very much have a conservative activist judge

I've defended myself in-front of a judge twice (over minor matters). It's a terrifying feeling, standing in-front of a man/woman who has the power to destroy your entire life.

I don't want them to rule based on their own opinion, I want them to rule based on the law. Pure and simple. He hasn't done that here.

This judge has some big kahunas for dismissed the case with prejudice. I haven't heard of another judge doing that when it comes to IP lawsuits these past few years. It was a smart move though, I can't wait till all these tit-for-tat lawsuits are done.

P.S.: I was initially confused by ArsTechnica's characterization of Judge Posner as "District Court Judge."That's just sloppy and unprofessional. In the linked scribd.com document, it clearly stated "Circuit judge, sitting by designation."

i dont get his motorola harm comment, its like he is oblivious to the market or stuck in the past when moto was a company that had sway. losing any one android phone maker would not make a dent in the market.

Great, that leaves moto vs MS in like several countries, apple vs. samsung and I guess not the same judge, apple vs. htc in 3 separate complaints, each one that lost ITC patent claims against respective companies re-petitioning a review...

i dont get his motorola harm comment, its like he is oblivious to the market or stuck in the past when moto was a company that had sway. losing any one android phone maker would not make a dent in the market.

We need to send Richard Posner to Congress. He's already shown more sanity than the 535 individuals there could ever hope to muster on this issue.

You got that right! And I agree, the patent system here in the US is chaos. None of the major tech companies can stomach the fact that, whether they realize it or not, everyone is standing on somebody else's shoulders in some way, and vice versa. Instead of throwing money around in court, companies should be trying to innovate, especially since we're not dealing with exact duplicates here. So what if some company makes an interface, or a plastic case, or even a small symbol that sorta-kinda-but-not-really-looks/acts/functions-like-something-in-XYZ. Instead of wasting months/years/decades in court, just come up with something that the other company doesn't have. That's how new ideas are born, how technology evolves.

To Judge Posner, GREAT JOB! Set an example for all the other judges, dismiss all these pointless IP cases!

I don't want them to rule based on their own opinion, I want them to rule based on the law. Pure and simple. He hasn't done that here.

Surely this will go to appeal, and some other judge will sort it out.

Haven't read the 38 page opinion linked. And I don't agree with him on many issues. But I doubt your characterization of him is correct. He has his reputation, as noted in his Wikipedia entry:

"In his decision in the 1997 case State Oil Co. v. Khan, Posner wrote that a ruling 1968 antitrust precedent set by the Supreme Court was "moth-eaten", "wobbly", and "unsound". Nevertheless, he abided by the previous decision with his ruling. The Supreme Court granted certiorari and overturned the 1968 ruling unanimously; Sandra Day O'Connor wrote the opinion and spoke positively of both Posner's criticism and his decision to abide by the ruling until the Court decided to change it."

And I really don't understand why people are complaining about him throw out the expert testimonies from both side on the damage. People on Ars and other tech websites always bemoan about "junk science." And the response to that issue had been the so-called "Daubert standard."

"The Daubert trilogy refers to the three United States Supreme Court cases that articulated the Daubert standard:

Daubert v. Merrell Dow Pharmaceuticals, which held that Rule 702 of the Federal Rules of Evidence did not incorporate the Frye "general acceptance" test as a basis for assessing the admissibility of scientific expert testimony; General Electric Co. v. Joiner,[1] which held that an abuse-of-discretion standard of review was the proper standard for appellate courts to use in reviewing a trial court's decision of whether expert testimony should be admitted; Kumho Tire Co. v. Carmichael,[2] which held that the judge’s gatekeeping function identified in Daubert applies to all expert testimony, including that which is non-scientific."

I don't think the current state of Daubert standard is perfect, but it's a significant improvement. My personal opinion, not specific to this case, is that it's still to loose, not the other way around.

He threw the case out because both sides did nothing more than make unsubstantiated (some for lack of evidence, some for being unsupportable) claims for damages, or claim infringement on patents which even if infringed are so easy to design around that he could do it himself, which he demonstrated by doing so. He didn't say so, but it looks to me as if the legal teams thought they could flummox the Judge somehow -- he even chose to excuse unpreparedness as something that could happen to even the best legal teams. That's got to hurt.

Emotionally I agree with his actions, but legally it felt dubious that he could do this. Still, he's the judge, and these patent suits are not about patents but about big companies waging war outside the marketplace. None of the goals are really about getting payment for their inventions.

It's important to remember that IP law is not some if-then statements that lead from patent to injunction. Injunctions are actually weighed carefully, especially looking at harm currently being done and the harm that would be done by the injunction itself. IANAL, but my understanding is that eBay vs MercExchange is still very relevant

(1) that it has suffered an irreparable injury(2) that remedies available at law are inadequate to compensate for that injury(3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted(4) that the public interest would not be disserved by a permanent injunction.

That's why companies love the ITC...the barrier there is much lower (and much faster) to get an injunction granted. If Motorola and Apple can't prove damages, and if they can't demonstrate harm substantial enough to justify an injunction, then what do you want the judge to do?